BMI”) Submits These Public Comments in Response to The
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Public Comments of Broadcast Music, Inc. U.S. Department of Justice, Antitrust Division Review of Consent Decree in United States v. Broadcast Music, Inc. November 20, 2015 Broadcast Music, Inc. (“BMI”) submits these public comments in response to the September 21, 2015 solicitation of public comments by the Antitrust Division of the U.S. Department of Justice concerning fractional licensing of public performance rights in co-owned musical works as a part of its review of the consent decrees in United States v. Broadcast Music, Inc.1 and United States v. American Society of Composers, Authors and Publishers2 (the “Public Notice”).3 BMI will continue its ongoing dialogue with the Department concerning fractional licensing and other topics in the hope of soon reaching an agreement on a set of necessary changes to the BMI consent decree. BMI submits these comments to state publicly its position on fractional licensing for the benefit of other interested parties. As we described in BMI’s August 6, 2014 public comments, the advent of digital processing and Internet streaming has revolutionized the way that the public hears music performances. The Department’s ongoing review of the consent decree must address the current and foreseeable future marketplace and make the changes necessary to bring the consent decree into the 21st Century. In the 15 months since BMI previously provided public comments, the demands of larger publishers to take control of their catalogs and license directly to Internet 1. 1966 Trade Cas. (CCH) ¶ 71,941 (S.D.N.Y. 1966), amended, No. 64-CIV-3787, 1994 WL 901652 (S.D.N.Y. Nov. 18, 1994). 2. No. 41 Civ. 1395, 2001 WL 1589999 (S.D.N.Y. June 11, 2001). 3. As a party to the decree in United States v. Broadcast Music, Inc., BMI stands on unique legal ground, not shared by any other members of the public, concerning the decree in that case. See, e.g., United States v. Am. Soc’y of Composers, Authors and Publishers, 341 F.2d 1003, 1007 (2d Cir. 1965) (non-party to decree lacks standing to move in antitrust action against defendant). In submitting these comments, BMI reserves all of its rights as co-equal party to the decree with the Department. 2 users in order to negotiate royalties in a free market have become even more insistent. Certain songwriters formerly affiliated with BMI and ASCAP have signed with a new, unregulated performance rights organization, Global Music Rights (“GMR”), and terminated their relationship with the regulated PROs presumably in the hope of achieving greater royalties. At the same time, unregulated, for-profit SESAC, through its recently acquired Harry Fox Agency (“HFA”)4 and RumbleFish, offers mechanical and synchronization rights (including micro-sync rights for high-volume, uniform-value synchronization largely for user- generated content) that BMI is not currently providing.5 If the uncertainty created by the Department’s continuing review of the consent decree persists, it will place challenges on BMI’s ability to compete and respond in this dynamic and rapidly evolving landscape. Equally, BMI’s songwriters and publishers remain in a limbo of uncertainty concerning the performance rights that are typically their primary source of income. There is an urgent need for modification of the BMI consent decree without further delay, and to modify the decree in such a way as to permit BMI to compete under the same rules of play as these current (and future) unregulated entities. To the extent that recent court decisions and the Department’s Public Notice have drawn into question BMI’s right to accept fractional interests from songwriters and publishers or issue fractional licenses to music users, the meaning of the decree should be clarified so that BMI may license on a fractional basis if it and its affiliated songwriters and publishers want it to do so. There is no reason to compel BMI to grant greater rights than music users have paid for, 4. SESAC acquired HFA in September of 2015, thereby adding to its ability to bundle licensing for digital services that require performance rights as well as synchronization and/or mechanical rights. See Ed Christman, SESAC Buys the Harry Fox Agency, Billboard (July 7, 2015), http://www.billboard.com/articles/news/6620210/sesac buys-the-harry-fox-agency. 5. BMI continues to rely on the language of its decree, which does not prohibit it from licensing rights in addition to the public performing right. 3 or to act contrary to the preferences of its affiliates. Indeed, requiring BMI to license on a 100% basis would only increase its purported market power, a result hardly reflecting the purpose of the BMI consent decree. Fractional licensing – where BMI represents only the interests of its writers and publishers – is the efficient, common-sense way to deal with the longstanding fact that many songs are co-written by BMI affiliates and non-BMI affiliates (“split works”). In fact, fractional pricing and distribution by BMI and ASCAP have been the indisputable norm among all the stakeholders for decades for compelling reasons: x Fractional licensing makes sense for music users that want blanket access to all the works in the BMI and ASCAP repertoires but don’t want to pay the PROs in full – twice – for the right to play jointly-authored works. x Fractional licensing makes sense for publishers who don’t want to account to other publishers for partial interests across their catalogs, co-owned by those other publishers. x Fractional licensing makes sense for songwriters who want to have performances of their works valued by the PRO of their choice, want to be paid by the PRO of their choice, and want to choose their collaborators in a new song based on creative considerations, not the PRO affiliation of the other songwriters. x Fractional licensing makes sense for PROs that need to collect fees and pay royalties that are fair for their songwriters but have no way to collect for, or to pay, the collaborators of their songwriters who have chosen a different PRO to represent them. 4 x Fractional licensing makes sense for rate courts that would otherwise have to deal with competing claims to license the same copyright interests and which (under mandatory 100% licensing, discussed below) would otherwise be challenged to value two independent PRO repertoires each of which would contain works whose performance could be licensed by either PRO. By contrast, mandatory 100% licensing, whereby a music user holding either a BMI or ASCAP blanket license would obtain the right to perform all co-written songs without obtaining permission to perform those songs from the other PRO or any other non-affiliated co- writer or publisher, would inject great inefficiency and confusion into the pricing, collecting, and distribution of performance rights royalties. It would also have the perverse effect, from an antitrust policy point of view, of undercutting an individual publisher’s ability to license their catalogs directly to music users (because the PROs will have already licensed any split works, which now make up a large portion of most publishers’ catalogs), thereby shoring up and increasing the bargaining power of the collective licensing organizations. At the same time, mandatory 100% licensing by PROs would encourage opportunistic gamesmanship by any music user seeking to avoid paying the full value of all the rights it acquires. Requiring BMI to license not only the interests of its own affiliates, but also the partial interests of unaffiliated co-songwriters and co-publishers, would impose an unworkable and unwarranted change to the existing and longstanding understanding by which both music users and music creators have operated for jointly-written songs. As the Public Notice states, “the historical practice” has been that “ASCAP and BMI have made and accepted payments . based on the fractional interest each copyright owner holds in works.” 5 Pursuant to this practice, music users have obtained permission from the representatives of all co-owners of the songs they play – typically BMI, ASCAP, and SESAC. Songwriters have been able to look to their own trusted PROs and publishers for payment for their contribution to jointly-written songs. Until now, there has never been any reason to consider whether BMI licenses that include split works, in the abstract, also cover the interests of ASCAP and SESAC writers and publishers in those same works. It is indisputable, however, that the market has consistently embraced a fractional-licensing model. Basic Principles Several basic principles underlie BMI’s view on fractional licensing and are the foundation on which the remainder of the points addressed in these comments lie. 1. Requiring BMI to provide 100% licensing will undermine the copyright owner’s right to license directly, thus contradicting the procompetitive goals of antitrust law and the fundamental purpose of the consent decree. The BMI consent decree is not intended to regulate individual publishers or regulate the prices that they may charge. Rather, the fundamental purpose of the consent decree is to ensure that BMI does not exercise its alleged market power as a result of its own collective licensing activity.6 Preserving the incentives of music users and individual copyright owners to enter into direct licenses in the free market has been consistently recognized as a check on any incremental market power that BMI could exercise through the pooling of performance rights in 6. See, e.g., Brief for the United States as Amicus Curiae at 11, Broad. Music, Inc. v. DMX Inc., No. 10-3429, 2011 WL 1462242 (2d Cir. Apr. 11, 2011) (“[T]he modifications sought are procompetitive” and would serve the “key purpose of the Consent Decree – limiting any alleged market power BMI may have.”) (internal citations omitted); United States v.